Bayley & Sons, Inc. v. Braunstein Bros.

LEARNED HAND, District Judge

(after stating the facts as above). Every one. concedes that the patent itself is only prima facie proof of the patentee’s right to his monopoly. To allege the patent alone, therefore, is to allege evidence, and not the “ultimate facts” required by rule 25 ( 198 Fed. xxv , 115 C. C. A. xxv ). The only question that can arise is, what portions of the statute which define his right shall be regarded as provisos and what exceptions. It was well settled before tire rules went into effect that the plaintiff must allege, not only that he was the first, original, and sole inventor, but also compliance with the negative requirements of the statute. Blessing v. Copper Works (C. C.) 34 Fed. 753 ; Coop v. Institute (C. C.) 47 Fed. 899 ; Consolidated Brake-Shoe Co. v. Detroit Steel & Spring Co. (C. C.) 47 Fed. 894 ; Goebel v. Supply Co. (C. C.) 55 Fed. 827 ; Hanlon v. Primrose (C. C.) 56 Fed. 601 ; Ross v. City of Ft. Wayne (C. C.) 58 Fed. 404 ; Hutton v. Seat Co. (C. C.) 60 Fed. 747 ; Diamond Match Co. v. Ohio Match Co. (C. C.) 80 Fed. 118 ; Rubber-Tire Wheel Co. v. Davie (C. C.) 100 Fed. 85 ; Elliott & Hatch Book-Typewriter Co. v. Fisher Typewriter Co. (C. C.) 109 Fed. 330 . Since the new rules went into effect, some difference of Opinion has arisen. Judge Ray has held, in Maxwell Steel Vault Co. v. National Casket Co. (D. C.) 205 Fed. 515 , that the old rule applies. But Judge Tuttle held the contrary, in Zenith Carbureter Co. v. Stromberg Motor Devices Co. (D. C.) 205 Fed. 158 .

I cannot see that the new rules can have changed the pleading at all. .They only incorporate what was the practice of every good pleader before. The equity bar got into verbose habits, but those habits were never proper, except for the fact that, by loading the bill with “proper charges,” the discovery could be made more specific. It therefore was necessary to put much evidence in the bill. That requirement has been eliminated by the rule, so that the bill is now, what it always ought to have been, a mere pleading, and not a “charge”.of evidence to be answered. But the rules did not and could not change the necessity of a statement by the party having the affirmative of the “ultimate facts” on which his right depends. Nevertheless, I hope we shall not return to the old idle verbiage, which incumbered a bill for infringement. Whether we do or not depends upon the instinct of workmanship of the bar.